L.S. Starrett Co. v. Federal Energy Regulatory Commission
650 F.3d 19
| 1st Cir. | 2011Background
- Starrett appeals two FERC orders determining its Crescent Street Dam changes would require licensing under the Federal Power Act § 23(b).
- Project sits on the non-navigable Millers River in Athol, Massachusetts; pre-1992 Starrett I held no license was required as there was no post-1935 construction.
- Left-side generator failed; Starrett studied replacement; feasibility showed a new left-side generator of 198 kW would raise total installed capacity to 448 kW, though actual capacity would be 278 kW.
- Starrett began installing a new cross-flow turbine in 2008; work would involve floor lowering, plunge pool and outlet improvements, bedrock excavation, and new transition pieces.
- In 2009 USFWS flagged potential migratory fish impacts; in May 2009 FERC found the work would be post-1935 construction triggering licensing; rehearing denied; Starrett appealed.
- Court reviews whether the Commission reasonably concluded the project falls under § 23(b) by Commerce Clause jurisdiction, post-1935 construction, and effect on interstate commerce.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Millers River is a Commerce Clause stream | Starrett concedes the stream is Commerce Clause jurisdiction. | FERC properly treated Millers River as a Commerce Clause stream due to its tributary status to navigable waters. | Yes; Millers River is a Commerce Clause stream. |
| Whether Starrett's proposed work is post-1935 construction | Starrett argues work is a repair not increasing actual capacity beyond 1992 installed capacity. | Commission reasonably treated any increase in capacity (installed or actual) as post-1935 construction and included head increases as possible construct. | Yes; Commission reasonably concluded the work constitutes post-1935 construction. |
| Whether increases in capacity suffice to trigger FERC licensing under § 23(b) | Any increase must exceed the 1992 installed capacity to trigger licensing. | Any capacity increase, regardless of whether it surpasses the earlier installed capacity, can fall within construction for § 23(b). | Yes; increased capacity supports licensing jurisdiction. |
| Whether the proposed changes affect interstate or foreign commerce | Starrett contends no substantial effect via a class-wide analysis; no single project effect. | Commission relied on cumulative small hydropower projects displacing grid power to conclude a substantial effect on commerce. | Yes; substantial evidence supports a class-based cumulative effect on interstate commerce. |
| Standard of review applied to FERC's jurisdictional determination | Chevron deference should not expand FERC’s jurisdiction beyond clear congressional intent. | Agency’s interpretation is reasonable under Chevron and substantial-evidence review. | Apex: review under substantial evidence and Chevron framework; upheld. |
Key Cases Cited
- Union Elec. Co. v. FERC, 381 U.S. 90 (Supreme Court, 1965) (commerce power reaches local activities with aggregate effects on interstate commerce)
- Habersham Mills v. FERC, 976 F.2d 1381 (11th Cir. 1992) (cumulative effect of small hydro projects can satisfy commerce requirement)
- City of Centralia v. FERC, 661 F.2d 787 (9th Cir. 1981) (analyze whether a projectile has substantial effect alone or as part of a class)
- Thomas Hodgson & Sons v. FERC, 49 F.3d 822 (1st Cir. 1995) (post-1935 construction inquiry and capacity considerations)
- Aquenergy Systems, Inc. v. FERC, 857 F.2d 227 (4th Cir. 1988) (carefully planned changes that do not increase designed capacity may not constitute construction)